This story was originally published by ProPublica . In its term that ended last October , the Supreme Court passed an important milestone that went unnoticed: For the first time, it decided more cases by secret ballot, and with few signed opinions, than it did for cases argued in open court.
These decisions, which make up the court’s “shadow docket,” are a fast-track way to get a decision from the top court. They rarely include arguments, have limited briefings and have expedited timetables, and justices infrequently provide explanation of how they voted or to cite legal precedent. The Supreme Court’s increased willingness to bypass its regular process has empowered President Donald Trump at the same time as the administration has increased use of executive authority. The court has repeatedly upheld policies of his that lower courts have blocked — and has done so with little to no explanation. These emergency decisions have thrown lower courts’ processes into turmoil and have sometimes directly contradicted long-standing legal precedent. The outcomes have been consequential: The high court has used the process to limit federal courts from issuing nationwide injunctions and diminished Congress’ authority over federal agencies, and it has allowed for the detention of American citizens by immigration agents. ProPublica analyzed over two decades of Supreme Court rulings, which cover all of the years under Chief Justice John Roberts and go as far back as the online archives allow. We found that when the last court term ended, justices had issued 63 orders on the shadow docket, as opposed to 56 orders on the more traditional merits docket — where the court hears oral arguments scheduled months in advance and the justices issue signed opinions. “The patterns show a court going out of its way to enable Trump.” Legal scholars and court watchers were shocked by our finding. They told ProPublica it’s likely the first time in modern history that so many consequential decisions were made in secret by the court’s nine members.
“The patterns show a court going out of its way to enable Trump,” said Stephen Vladeck, a law professor at Georgetown University and a Supreme Court analyst. He said our findings reinforce the appearance that the justices are voting on their political preferences. “That’s the real blow to the court’s credibility,” he said.
Representatives from the Supreme Court did not respond to a detailed list of questions. In a statement, a spokesperson for the White House wrote, “President Trump has faced a historically unprecedented number of injunctions by liberal lower court judges, the same judges who would rather push their own policy schemes and undermine the Administration’s lawful agenda. President Trump will not stop implementing the America First initiatives on which he was elected.” Note: Supreme Court terms run from October to October. (ProPublica/Ken Morales) There are two ways to get a decision from the Supreme Court. One is to exhaust your appeals to lower courts and ask to argue your case in front of the high court. The justices determine whether to take the case on, and if they do, lawyers for each side present arguments in front of them. The other way is to petition the justices directly via the emergency docket — to freeze a lower court ruling or government policy while the case goes through appeal.
The appeals to the emergency docket have long outnumbered those to the merits docket, but most are procedural requests or requests to stay execution for capital offenses. When those are removed, what’s left is known as the shadow docket — cases that seek to skip the usual order of things and ask for a quick ruling from the justices. “They’ve demolished what used to be the law.” The modern shadow docket was born in 2016 when the Supreme Court issued an emergency stay against President Barack Obama’s Clean Power Plan, experts say. Papers obtained by The New York Times show that liberal justices at the time urged Roberts not to decide the case on an emergency basis because it broke with longtime precedent. The conservative justices, meanwhile, forcefully argued that the president’s plan would eventually be overturned by the court anyway and that it would put too much of a burden on the energy industry.
Driven by its numerous losses in lower courts, the current Trump administration appeals to the emergency docket significantly more often than previous administrations, and the court has increasingly agreed to take quick action on its appeals.
The Obama and George W. Bush administrations together filed just eight petitions in 16 years. The Trump administration filed 32 in 2025 alone, an analysis by the Brennan Center for Justice found .
The increased willingness of the Roberts court to intervene on Trump’s behalf — as well as in other issues that favor conservatives and Trump allies — has upended American life, said Donald Ayer, a former deputy solicitor general and deputy attorney general who served in the Reagan and George H.W. Bush administrations.
“On many subjects of real importance to our future, they’ve demolished what used to be the law,” he said. * * * Public scrutiny of the shadow docket ramped up in September 2021 after the Supreme Court used it to issue a one-paragraph, unsigned opinion that further rolled back abortion rights established in the 1973 Roe v. Wade ruling. In the order, the court refused to block Texas’ Senate Bill 8, the “Heartbeat Act,” which banned abortion after an embryo’s cardiac activity is detectable, typically at six weeks of pregnancy and before many people know they are pregnant. Protests erupted nationwide after the ruling, and the Senate Judiciary Committee held a hearing on the shadow docket.
In an unusual public acknowledgement, Justice Elena Kagan referenced the shadow docket by name in her scathing dissent, accusing the majority of green-lighting a “patently unconstitutional law” with only a cursory review in less than 72 hours.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend,” Kagan wrote. Justice Elena Kagan referenced the shadow docket by name in her scathing dissent. That an opinion was even issued and that four of the justices signed their names to it was uncommon. On the shadow docket, justices do not have to make their votes known. In rare cases, their votes are revealed in terse indications that they grant or deny the application, or even more rarely, as an opinion. We found that just 17% of votes cast had any sort of public record of a vote or opinion.
Responding to public criticism, Justice Samuel Alito contended that the court isn’t to blame for the rise in shadow docket cases. “We do not file these emergency applications,” he said . “Parties file them.”
The debate has continued. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage,” Justice Ketanji Brown Jackson said during an April speech on the shadow docket at Yale Law School.
Until the most recent Supreme Court term, emergency applications fluctuated year to year but showed no clear upward trend. The applications are given first to a single justice, who decides if a case is worth referring to the full court. In recent years, justices have referred more of such appeals for a review and vote by the full court.
Last term, when there were both more cases and more referrals to the full court, the appeals to the shadow docket finally overtook those to the merits docket. (ProPublica/Ken Morales) The cases were consequential. On June 23, 2025, after a lower court had ruled that eight men being deported to South Sudan should have due process, the Supreme Court intervened after a request from the administration to stop that order. The men were deported. The majority didn’t issue an opinion justifying its ruling.
Three months later, the Supreme Court voted to allow immigration agents to stop people based on racial or ethnic characteristics while still-ongoing litigation against it proceeded. To justify the decision, Justice Brett Kavanaugh wrote a rare shadow docket opinion stating that people who were in the country legally would be “free to go after the brief encounter.” These became known as “Kavanaugh stops.” Last year, ProPublica found more than 170 citizens who had been stopped and detained by ICE agents. The more than 50 Americans held even after agents learned of their citizenship were almost all Latino .
And in May, while an election in Louisiana was already underway, the justices allowed the state to immediately redraw its electoral map, removing one of its two majority-Black voting districts. Louisiana can now use that map for the 2026 midterms as part of a nationwide redistricting battle for control of the House of Representatives — an effort touched off by Trump’s call for Republican-led states to create more safe seats for themselves.
Roberts once signed on to a Kagan dissent that assailed the shadow docket. But our analysis found that he has referred more substantive cases for a vote by the full court than any other justice, going from just one in the 2005 term when he joined the court to nearly half of all referrals in the last term. “The result is a body that looks less like a Supreme Court and more like a Royal Court.” There is an additional difference between the shadow docket and the merits docket. After the court holds public argument, the justices’ ultimate merits decisions are closely watched and extensively covered by the press. The summer’s “decision season,” when the final and most significant rulings come down, has a predictable cadence that ends when the justices go on summer recess. Not so with the shadow docket. Increasingly, the justices are making big decisions after they’ve issued their final merits docket decisions, when public attention has waned.
A group of Democrats led by Rep. Jamie Raskin, D-Md., has sponsored legislation to make the shadow docket more transparent.
Raskin told ProPublica that the court’s legitimacy has fallen with every significant decision made without “real opinions or analysis.”
“Lower federal courts have been deciding against the Trump administration in an overwhelming majority of cases with weighty and well-reasoned opinions,” Raskin said in a written statement. “Yet when things get to the twilight zone of the shadow docket, the Supreme Court is overturning 100-page opinions with a flippant sentence or two.” He added, “The result is a body that looks less like a Supreme Court and more like a Royal Court rubber stamping the madness and folly of the Trump Administration.”
“The jurisprudence of the Roberts Court today is as murky as the green algae water in the Reflecting Pool.” Nick McMillan contributed data reporting.
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